The Public Policy

White Non-Asians?

The Department of Labor leaves no good deed unpunished.

By 8.23.13

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For all those who think affirmative action always hurts white people, think again.

When auditors from the Department of Labor analyzed the hiring practices at VF Jeanswear’s Winston-Salem, North Carolina plant in 2006, they unearthed a problem.

The bean counters who for federal contracts parse exactly how many people of which gender and ethnic group can be working in any given company based on community demographics found evidence of mass discrimination -- against white people.

In what most people would call a great example of a company reaching out to vulnerable members of a community who need work, VF had hired dozens of Montagnard refugees from Vietnam, people persecuted for their Christian beliefs in their home country, in its plant. The company even went so far as to translate employment forms into Vietnamese and hire interpreters to help community members apply for positions. To the government, however, this was a crime because as the Department of Labor noted in its 2011 case against VF, about 45 percent of its employees in the job group analyzed at the plant in question in 2005 were Asian compared to about 2 percent of the community qualified for the jobs.

The company also hired a larger percentage of Latinos than it should have based on demographic information. It hired about the same percentage of blacks given their representation in the community, but where it really failed was in not hiring enough white people. Whites made up about 8 percent of the job group analyzed but comprised 62 percent of the population qualified for that type of position. Perhaps recognizing the folly of suing a plant for not hiring enough white people, the Department of Labor created a new name for white victims, “non-Asian.” If you have not heard of this ethnic group before, you are not alone. The federal government doesn’t recognize a “non-Asian” racial category. Seeking to compensate victims of the refugees’ sinister plan to have VF hire more of their friends and family, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) sued the company in 2011 in a case that is still ongoing.

At the heart of the lawsuit is the company’s employee referral program, which the Montagnards frequently used to recommend family and friends of the same ethnic background for open positions. The company did not control who submitted referrals, but the fact that the referrals were so lopsided toward one ethnic group was a problem for the government as the outcome of the process inevitably led to a disproportionate number of Montagnards receiving and accepting job offers based on the population as a whole.

Administrative law judge Kenneth Krantz earlier this month found that “The ‘non-Asian’ category upon which the Plaintiff has proceeded is neither a race nor an ethnic group, either by regulatory definition or as used in common parlance” and found in favor of VF -- seven years after the plant whose hiring practices are under scrutiny in the lawsuit closed. The OFCCP is appealing the decision.

Jimmy Powell, an attorney for Womble Carlyle in Greensboro, North Carolina, representing VF, called the lawsuit “the worst example of bureaucratic bullying that I’ve ever encountered.”

He’s right.  The government couldn’t use existing categories of race to sue VF so it made up a new aggrieved ethnic group -- “non-Asian.” Worse, it is suing a company for helping a group of vulnerable members of the community that taxpayers were at the same time paying to help relocate, educate, and train for jobs.

If this were an isolated incident it would be a terrible example of government overreach. But it is not. It’s how the OFCCP operates. Read through its press releases for more examples of how the government uses the hiring audit process to bludgeon companies to settle cases for millions based solely on statistics and not actual discrimination.

They will make you think the OFCCP exists solely to inflict cruel and unusual legal punishment on companies large enough to have federal contracts. Add it to the list of departments that should be defunded immediately. 

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About the Author
Marta H. Mossburg writes frequently about national affairs and about politics in Maryland, where she lives.  Write her at marta@martamossburg.com. Follow her on Twitter at @mmossburg.